Posted
by
Soulskillon Friday February 14, 2014 @04:54PM
from the how-not-to-attribute-photos dept.

An anonymous reader writes "Photographer Maxwell Jackson went to an event called The Color Run and took some pictures. He was approached by the organization to share some of his photos on Facebook, and he agreed. Later, he found they were being used without attribution in promotional materials such as flyers and signs. When he contacted The Color Run over the misuse of his photos, they sued him. As a professional freelance photographer for a local college and a hobbyist code junky, I'm intrigued by this story and how it should be a warning for members of either trade. There is a good lesson to be learned here about taking for granted the legal implications of the manner in which you exchange your own intellectual property with anyone."

... they have also argued that because their trademark “Color Run” is in my photos they are entitled to them.

Is that true that there is a level of entitlement if your trademark is photographed in a public place? I recall that the IoC have successfully forced take-downs of videos that happened to have the olympic rings in the background of them, citing trademark protection even though the video had nothing to do with the Olympics.

I've been told by a lawyer (not getting legal advice, just chatting with a friend a couple of weeks before a Super Bowl one year) that if those sorts of shenanigans ever went through a trial all the way to a judgement that they wouldn't hold up. And according to the actual letter of the law, Joe Schmoe grocer could legally go ahead and sell beer and chips to you for your Super Bowl party instead of echoing the "big game day party" nonsense.

This is where that young boy becomes the youngest Seeker in school history, and then later sends messages via his Superb Owl! Then later Hermione studies hard because she wants to pass her Ordinary Wizard Levels!

Congress has granted the IOC special trademark privileges for exclusive use any linked ring motif and the word Olympic (other than areas related to the Olympic mountains). Their ruthless execution of that power isn't typical of normal trademark enforcement which must demonstrate marketplace confusion and potential harm to business.

This is all actually fairly straightforward if a little weird under boilerplate copyright law.
First, lacking model releases of his own, Jackson cannot use the photos for commercial purposes. He could use them as part of a portfolio but as soon as he puts one on a billboard or in an ad, he needs permission from the individuals who are identifiable in the image, which he doesn't have.
Second, in the absence of a contract Jackson owns the images, full stop. Nobody can put them on a billboard without his permission. He gave permission to put them on Facebook, but the going rate for use on billboards and in ads is much higher. $100K is not unreasonable for the level of use that has been demonstrated.
Third, Color Run almost certainly has a model release embedded in the paperwork the runners sign to enter the race, so they have the right on that count to use the pictures. They would be OK if they compensated Jackson, but they are not OK if they do not compensate Jackson. This is the ONLY way it is OK to put those pictures on billboards -- Jackson has to give permission to do so, for which he deserves much more compensation than he would get for use on Facebook, and Color Run has to do the publishing because they have the model releases.
The Color Run people are way out of line here and probably indulging in a snit because their authoritah was disrespected. But they are very clearly in the wrong.
As for trademark, that's completely irrelevant, since Jackson has no right to publish the pictures commercially without the model releases that Color Run has. However, Jackson DOES have certain Fair Use rights, such as releasing a few examples in the course of presenting his side of this story, as long as there is no danger of the images being misinterpreted as a commercial representation by Color Run themselves and as long as they serve certain alternate purposes, for which "news" qualifies.

I recall that the IoC have successfully forced take-downs of videos that happened to have the olympic rings in the background of them, citing trademark protection even though the video had nothing to do with the Olympics.

From the summary of this article, I was just trying to wrap my head around how this college student could have gotten himself into this predicament. My first suspicion was he didn't read the terms and conditions carefully enough when he was asked for permission to share some of his photos. (I figured, "Ok... maybe he just saw the part about them wanting to put them on their Facebook page and didn't notice some fine print releasing the photos for all promotional uses?")

But unless there's more to this story than what's being told? "The Color Run" is simply owned by a guy who's being a complete asshole. Receiving a letter asking to be fairly compensated for the use of photographs in commercial material, after you *only* received permission to share them on Facebook, is hardly "extortion"!

And trying to add on additional charges against the student seeking just compensation, by claiming he owes them for trademark infringement because the "Color Run" name and logo showed up in some of the photos?! Yeah.... I think not, buddy.

Jackson wrote that instead, he was "requesting compensation as follows: $100,000.00 US deposited into my business bank account, additionally to be named the Official Photography Sponsor of The Color Run (Internationally) for the remainder of its existence, my Logo to be added in sponsors section next to Chevy on the bottom of your web pages. My name to read at the bottom of any photo's used in legible print from the next print run forward as, Photogrph by Max Jackson." He warned "if no efforts are made within 15 days, to contact me I will be forced to take further action."
Source [browardpalmbeach.com]

actually that doesn't sound unreasonable, you have to figure they got at least $100,000 of use from the photos and the rest is essentially free, putting him down as a sponsor, putting his name on the photos he took.... all sounds like reasonable requests. And that $100,000 provides royal free usage of all photos he has provided the color run from now until eternity, I would think that's a great deal for the color run.

In store advertisements don't pay like that. It might be a reasonable price for full rights to all photos, but not to license an image for use in an advertisement (which is what you would have to sue them for).

Yeah, but he wasn't asking for the statuatory damages. He was asking for compensation for the photo plus a job (or at least his name plastered all over their site and being named their official photographer for life). If he is going to sue them for damages, they sure as hell aren't going to name him their official sponsor and plaster their name over their site--they are going to never mention his name, never buy an image from him, and make sure to remove all reference to his photos from their site.

Yeah, but he wasn't asking for the statuatory damages. He was asking for compensation for the photo plus a job (or at least his name plastered all over their site and being named their official photographer for life). If he is going to sue them for damages, they sure as hell aren't going to name him their official sponsor and plaster their name over their site--they are going to never mention his name, never buy an image from him, and make sure to remove all reference to his photos from their site.

His demands were pretty unreasonable (but he's just a college student who probably doesn't realize that).

So, he can collect $150k per work in statutory damages after a court case, or CR can cut a cheque for a bunch less and correct their lack of license. That seems like a pretty reasonable beginning of negotiations. Now if this was negotiations before they had used the images improperly, asking for $100k + other stuff would probably be over the top and unlikely to be very effective.

While The Color Run's response is a bit extreme, they are correct that what Jackson is asking for is completely unreasonable. Typical compensation for a full-page photo [photographersindex.com] published with a distribution of between 10,000 to 100,000 is on the order of $500-$1000. For a photo used in advertisements at retail stores, it's about $1000-$2000. Usually, if the parties involved can't come to an agreement, these type of unattributed photographer incidents wind up in small claims court because the amounts involved are so small, not federal court.

I think what we have a kid here who hears stories about how much 30 year veteran pro photographers with well-established reputations make, and thinks it's normal to snap a few photos and be set for the year. The only way he could realistically collect $100,000 is if (1) he registered the copyrights on his photos with the U.S. Library of Congress, and (2) he managed to prove in court that The Color Run knowingly, deliberately, and willfully violated his copyright. I highly doubt he's going to be able to prove (2), and if he didn't do (1) he's only entitled to damages suffered (in this case, probably zero unless he has a letter from another advertiser saying they wanted to pay him $x to use his photos but decided not to after seeing that The Color Run was already using them.

To any budding photographers: Copyright infringement on the Internet is rampant. If you find your photos being used without your permission, you are not the first person this has happened to. If you don't want to pay for a lawyer, ask what to do in online photo forums. Lots of photographers who've had the same thing happen will be more than happy to give you advice on how to proceed, and provide guidelines on reasonable pricing like the link I gave above.

So, $2000 for the retail store ads. But that's per picture, and the story says "his pictures", so at least twice that amount. Then there's the flyer, plus multiple web sites with global reach. And they "sublicensed" the pictures. The article mentions that even Coca-Cola used his pictures. It would be interesting to know if Coca Cola sponsored the Run and got to use the pictures in their ads in return. And then retroactive licensing is usually three times the normal price. Do you still think $100.000 is far out? And don't start with the "he's only a kid, not a top photographer". If multiple companies (including marketing giants like Coca Cola) deem his work worthy of being used in advertising, he deserves a professional price for his photos.

he's only entitled to damages suffered (in this case, probably zero unless he has a letter from another advertiser

The phrase is Actual Damages and Profits.
If his photograph was used in a marketing campaign, and there were additional revenues after the marketing campaign ---- then a proportion of the additional revenues will be profits from infringement.

Damages suffered, includes actual benefits for the infringer and his loss from their failure to pay for their commercial exercise of his exclusive ri

Are you serious? He is requesting at the same time to be paid (quite highly actually - no it is not a good deal) for his photos AND be put down as a sponsor AND have his name printed on them. You can't ask for all of that - you give something to be a sponsor, you don't take, and in general asking for a big sum for photos usually means allowing no watermarks etc. And IN ADDITION he wants to be their official international photographer for life!
But of course his father is a "cosmetic surgeon" and told him he

He can ask anything he wants to. What he should get is a different story. In negotiations, I sometimes ask for more that what I think I should get and am willing to negotiate towards a mutually agreed value. It's pretty much standard practice in negotiations.

Exactly. In this case, he has the strong negotiating position that statutory damages for copyright infringement can be as much as $150k per work.

IF true that's a pretty lousy opening correspondence - the kind usually reserved for patent trolls and others with an overblown sense of entitlement and enough lawyers to back it up. Without the lawyers it's just smack talk and deserves nothing more than to get smacked back.

I agree the kid deserves compensation, and the company deserves to be slapped hard as an example to others, but I *seriously* doubt $100,000 is the going rate for a single image by even a top-tier professional photographer.

I agree the kid deserves compensation, and the company deserves to be slapped hard as an example to others, but I *seriously* doubt $100,000 is the going rate for a single image by even a top-tier professional photographer.

Remember, as photographer, he owns the copyright to the photos. The fact that the photos were pirated does entitle him to claim copyright infringement. Especially since they were used in ways to make prof

It's called a high opening bid. When it's unreasonably high and tactless it's a message to fuck off and stop using someone else's stuff instead of being extortion, but usually it's a request for a counter offer.See the Breaking Bad car wash sale scenes for an an unreasonable price being used as a message to fuck off.

Actually you don't understand pricing of photographs at all. Companies routinely spend $10,000 and more to hire a photographer for just one day. 100,000 also accounting for damages. The maximum amount you can sue for is 30,000 per instance.

Of course even worse for the fool, he has now made a name for himself as someone not to touch with a barge pole when it comes to commercial photography. Greed driven stupidity, one lucky chance becomes the end of a career, there is a lesson for everyone here. Oh yes and trying to scam slashdot with the bullshit plea whilst not declaring the original claim really pretty shitty.

So if sometime takes your work and claims it for their own, and you complain about it, does that make you someone not to touch with a barge pole in your field?What's your answer to that and why should your personal situation be treated differently to what you suggest for this young photographer?

If someone asks for your work (pay bloody attention) and you say yes, don't turn around a stipulate new conditions after they use in a manner you had not intended but did not stipulate or limit ie stinks of typical patent trap, just applied to copyright. So yeah, once you here of someone who behaves like that, you simply do not touch them, ever. Who knows what extortionate demands he might make in the future. When you say yes it is your responsibility to clarify, a person with half a brain with have just a

However they broke the agreed terms of the contract. Would you complain? I would. I wouldn't do it like the person in the article because I'm not a teenager, but I wouldn't let it slide either and I doubt you would either.

Don't be an idiot. This isn't about Facebook using his photos, it's about a third party using them. Nothing about allowing Facebook to exhibit your photos grants a license to some OTHER party for commercial use.

Jackson wrote “requesting compensation as follows:$100,000.00 US deposited into my business bank account, additionally to be named the Official Photography Sponsor of The Color Run (Internationally) for the remainder of its existence, my Logo to be added in sponsors section next to Chevy on the bottom of your web pages. My name to read at the bottom of any photo’s used in legible print from the next print run forward as, Photogrph by Max Jackson.” He warned “if no efforts are made within 15 days, to contact me I will be forced to take further action.”

That sounds like he was overreaching. If that was his first communication, it was a bad mistake.

I do a lot of negotiations like this, and I've gotten advice from a lot of lawyers. The first step should be a friendly letter or phone call.

"Did you know that my photos are copyrighted, and you have to get my permission to use them?"

"Oh noes! Is that true? I never knew! I'm terribly sorry!"

"If you want to use them, you have to get my permission. It's customary for a photograph

To add what others say, when product placement isn't paid for you'll notice the logos are always blanked out. You can usually see this with cars, the heroes are always driving the sponsored cars & the villains will be driving their competitor's cars with the logos painted over. Another example is drinks & restaurants, the names will be parodies of real places, McWaldos for McDonalds.

There was a scene in an episode of Heroes where the cheerleader got a new car from her dad. "Dad! Is that the new [make] [model]?!" squeals the girl in delight, as the camera does a nice slow twirl around the car.

What's shameful is that I didn't even notice how blatant it was until it was pointed out on another TV show.

Here in the UK, broadcasters - at least when it comes to domestic shows - are required to display a "P" symbol at the start of any show featuring product placement.

What's shameful is that I didn't even notice how blatant it was until it was pointed out on another TV show.

I've seen it even worse in Burn Notice-- something like "If you're going to ditch someone chasing you in a pursuit, you need a car with a lot of acceleration, quick handling, and great braking. That means something like the [make][model] is ideal". Followed by what amounts to a car commercial of a chase, with lots of logo shots.

Not to mention that any photo I took at Disney World would suddenly become properly of Walt Disney Company and I could be sued for sharing out photos of my vacations there without them giving me permission.

"they have also argued that because their trademark “Color Run” is in my photos they are entitled to them"

Just wait until Apple or Coca-Cola hears about this. They'll suddenly own so many movies in which their logo appears they won't know what to do with them.

Hmm...so if someone takes a picture of a 17 year old topless girl at a Color Run race that shows the Color Run logo, does Color Run own that photo, and are they the ones facing child pornography charges?

Secondly, we both know that the vast majority of product placement is paid. Don't be purposely obtuse.

Lastly, Apple does pay for product placement, but not in broadcast programming. They only pay for it in movies. How do I know? I'm a production accountant in the movie industry, and I see them writing checks for this all the time.

And Lance Armstrong said "I have never doped." How is that relevant? I'm sure that producer either wants to feel like he's not accepting payment or wants others to view it that way. Unfortunately for him, that's not an accurate reflection of reality. Giving someone items of value in exchange for performing a service is the very definition of payment. End of story.

Typically it costs a lot more to 'Pay' to have your brand mentioned than it is to give away some kit for free.That costs you only the cost price of the items and is often tax deductable as a promotional expense.Also, in many places giving kit is not considered a bribe whereas paying $$$$$ for some placement is the opposite.

Who would have thought a legal system designed by lawyers works for lawyers. Eventually a court might side with Mr. Jackson, but either way we all know who is going to be making a lot of money here: the lawyers representing both sides.

Besides that point, do you think it would bother the participants of this event that the organization running it has such disregard for a college photographer? I added in the college part because the participants of these things are usually 20 somethings. I have never parti

Yeah no doubt there are a lot of organizations/people who are making a handsome living from "non-profit" work. But being a non-profit isn't really what I was thinking of when I described them as "hippy".

Reading their about page [thecolorrun.com] and the event involving a bunch of people running around like a human tie dye t-shirt is why I describe them as "hippy".

As usual on Slashdot you only get one side of the story, and people all over cry in sympathy. I did too until I realised this photographer is quite the arsehole, I'd have sued him too if he tried a stunt like that. I worked in the industry. His work is worth $2-3k tops. Even less because he's freelance.

It is extortion when you initially request $100k, and when they deny you then up the ante to $300k + absurd requests that would never actually happen in any sane business relationship.

Also unless the images are individually registered with the patent and trademark office (most photographers don't do this unless the work for a media company who do it on their behalf) then he can't claim any statutory damages.

Also The Color Run apparently have evidence of him effectively working for them since he was their de

The kid seems like a little shit to me. When he found out they were using the pictures he send an extortionist email. He wrote that his father "a cosmetic surgeon", advised him to retain a lawyer and sue in federal court. But he said, magnanimously, instead he is:
"requesting compensation as follows: $100,000.00 US deposited into my business bank account, additionally to be named the Official Photography Sponsor of The Color Run (Internationally) for the remainder of its existence, my Logo to be added in s

Have you considered that he was adopting a negotiating position?
This would be seen as par for the course in business. A laudable, if aggressive, move to protect ones resources from unauthorised, uncompensated exploitation. A lot of people call it theft. It was the Color Run (an alleged charity) that took things into a business arena from a cuddly "charity fun run" area. His work was plastered everywhere for commercial exploitation and he received nil compensation, and nil attribution. The guilty party is

Maybe intellectual property is an unenforceable farce, even with a total-information-awareness police state backing it. Markets lacking natural scarcity arent markets at all. They are actually privileges granted by the state that encourage all kinds of petty bickering and teenage-like territorial pissings. Lawyers, and the top 1 percent rich enough to afford them, are the only ones who benefit. To the rest of us, lP throws up minefields that block potential paths of innovation.

What makes this particular case even crazier is that they didn't bother to humor him with the sort of token, small dollar amount that most, more established companies will offer when this sort of thing arises (and in this case, the photographer might have actually accepted). Nope, they went straight for the lawsuit.

You could be correct that the runners too might be owed some compensation if they have not already signed away some rights when they registered for the run, but the photographer in this case is not the publisher, so the subjects of the photo would not have any reasonable grounds to take action against the photographer, but they might against the people using their images in the advertising campaign.

The photos maybe were only worth a few dollars before they were misappropriated, but the point of statutory da

to a photographer these are gear destroyers. that crap gets inside the lenses and everywhere else.

And if the kid did not give them a written RELEASE spelling it out carefully, he deserves what he gets. As a photographer I will do a release for gratis for events, it requires them to sign the release that spells out exactly what hey can do and that they must give me full credit as well as links to my website, and it says that any use outside what was spelled out is a violation of the release.

They must sign it, then they get CROPPED or lower resolution photos, you never EVER give the full resolution raw files.

People starting out don't see their own self value and will do anything for exposure because they think exposure will bring them work. Its a hard lesson to learn that you don't just give away work for free.

Hey guys, if someone defrauds you, you go to the cops. You may want to have a good lawyer beside you, to help reassure them it isn't just you being an asshole, but fraud is one of those breaches of "the king's peace" that police were created to deal with.

As much as it sounds like these guys are being pricks on the surface here is a response from the owner that raises some pretty serious questions:

"Hi, this is Travis Snyder.

I wanted to respond personally to this matter. As the founder of The Color Run, I've had the opportunity to work with many successful creative partnerships of all sizes, including amazing photographers. I respect their ability to capture the essence of our event and fully believe that they deserve attribution for their work to showcase their talents. This issue with Max is a single anomaly and quite frankly makes me sad. Max first came to shoot The Color Run because we granted his school class non-commercial access to come shoot the race in Miami where the photos in question were taken. After this, Max actually ended up working our events over the next year as a non-photographer and traveling and setting up with our traveling teams.

About a year later, Max first initiated questions about the use of some of the Miami photos. We sat down and genuinely tried to reach an amicable solution, including offering financial compensation and exposure through our networks. Our offers were declined, and met with the following demands:(language taken from legal filings)

-"$100,000.00 US deposited into my business bank account" (This amount went on to be raised by Max to $300,000).

-"To be named the Official Photography Sponsor of The Color Run (Globally) for the remainder of its existence."

-"Max Jackson Logo to be added in sponsors section on the bottom of all web pages"

-"My name to read at the bottom of any TCR photo's used in legible print from the next print run forward as, Photograph by Max Jackson"

-"if no efforts are made within 15 days, to contact me I will be forced to take further action"

Understandably, these demands were quite difficult. They went far outside professional compensation and credit for photography work. We discussed other options, and ultimately when Max said he was planning to sue rather than continue a dialogue, there was little option left but to defend our rights through the legal system. I have been and will continue to be at the table to visit about how to resolve this outstanding issue.

As hard as it is to see tweets calling you a "#scumbag", I love the Internet and its ability to give everyone a voice. I also appreciate the opportunity to share more information and insight into a complex situation. My personal hope and intention has always been to get this resolved directly, amicably, and fairly."

If you are using someone's "something" worth $2-3k without permission, then you're in a pretty piss-poor bargaining position and $100k night actually be not such a bad price to pay. The statutory damages for copyright infringement can be pretty steep:

If he didn't register the image with the patent and trademark office before it was used (and lets face it most photographers don't, and pretty much every event photographer doesn't), then the maximum he can hope for is actual damages.

Few people who actually register photos: Photographers working for large publishers (e.g. National Geographics), top tier wedding photographers, and top tier commercial photographers where their contract specifically says they get to keep the work.

If he didn't register the image with the patent and trademark office before it was used (and lets face it most photographers don't, and pretty much every event photographer doesn't), then the maximum he can hope for is actual damages.

He could have registered the copyright formally, any time in the past year or so after shooting the photos, after he found that he was going to need to enforce the legally protected exclusive rights.

He won't be looking very good if they made an offer to remedy the situatio

Thank you for echoing the angle I have been concerned about for a while now!

We have almost been tricked into believing there are "different classes of copyrights"!

Not counting the cases the courts have specifically ruled on, there's no intrinsic difference between a photo and a song in the copyright sense. Flannery O'Connor had the right idea: "Everything that rises must converge".

So thanks to the Music Industry deciding that Copyrights are Big Biz, then... a student's photos are too. Check out the key phr

Agreed. This is the automatic response (note I didn't say the good or fair response) on the theory your opponent cannot afford a defense and will simply capitulate. Almost no attorney will accept the defense on contingency, you will have to pay up front. Depending upon where you live, probably $20K just to get to "show cause" and more during "discovery" and even more during the "trial". This would be a great time to consider what those pictures are worth to you because law != justice and participation is not optional.

Exactly, it's time for him to countersue for copyright infringement. His photos are being used in many places without permission or attribution. Time to pull a page out of the ol' RIAA playbook and sue for maximum damage per instance of infringement. Unfortunately, I doubt he can afford the legal case that would take.

I have no problem saying that public events can't claim that photos taken at the event are owned by the event sponsor, organizer, etc. HOWEVER, to say that the photographer has no rights to the photo they took is a bit crazy. I'm guessing that you have no idea how difficult it can be to actually TAKE a good photograph. I could be wrong, but seriously, if you had one hundred people take a photograph of the same thing, and one, good, professional photographer take the same shot, I guarantee the difference

I could be wrong, but seriously, if you had one hundred people take a photograph of the same thing, and one, good, professional photographer take the same shot

I had a really good wake up call with that. On a misty morning on a rainforest covered mountaintop I met a professional photographer. My shots were all just a tiny bit underexposed and were mere travel snaps when it came down to it. The professional photographer used shots taken that day in his calendars for the next decade (one or two each time) a

" I *can* prevent you from using pictures I take with you in them, and you *can* also prevent me from using the same pictures."

Not in all instances you can't. I can take photos of you in public and sell them as art or to news publications and you cant do anything about it.Now use your photo to promote a product service or event? That can be stopped but only because it is covered under a law about misrepresentation, not copyright.

As a photographer I own the copyright of any photo I take, even under contrac

I don,t believe the photographer paid the cyclist or got her permission to be photographed and published. Hes also claiming its art lol its NOT art all he did was push the camera button the scene was not posed in anyway nothing was thought out.

It is not clear that the photographer ever intended for the work to be published - all the publishing was done by CR, so they would be most liable from any claim made by the subjects of the images.

In any case, you do not need to prove the value of the "art" of your photos to claim copyright protection for them. If CR did not get permission to use them in their advertising, they they are liable for copyright infringement - which can carry some pretty significant statuory damages, as much as $150k per work.